Hungerford v. Portland Sanitarium & Benevolent Ass'n.

384 P.2d 1009, 235 Or. 412, 1963 Ore. LEXIS 343

• Court: Oregon Supreme Court
• Decided: September 5, 1963
• Status: Published

Opinions

GOODWIN, J.

This is a charitable-immunity case. The only issue is whether the court should now overrule its earlier decisions which conferred upon charitable enterprises immunity from liability for the torts of their servants.

The facts are not remarkable. The plaintiff brought an action for damages for injuries caused by the negligence of a nurse’s aide employed by the hospital. We will assume that, for the purposes of this case, the defendant Portland Sanitarium & Benevolent Association is a charitable hospital. Accordingly, if immunity should be law, the hospital would be entitled to its benefits.

Our latest decision fully exploring the problem is Landgraver v. Emanuel Lutheran, 203 Or 489, 280 P2d 301 (1955). The majority of this court was then of the opinion that the charitable-immunity exception to the general law of torts was a settled rule and that it ought not to be changed by the court. The dissenting opinion, Brand, J., weighed each of the arguments for such immunity with the arguments against it. Immunity was then, and is now, in general retreat elsewhere. Mullikin v. Jewish Hospital Assn. of Louisville, 348 SW2d 930 (Ky 1961), contains a recent review of the eases. The obsolescence of charitable immunity likewise has been well documented by text writers. See 2 Harper and James, The Law of Torts 1667-1675, §§ 29.16, 29.17 (1956); Prosser and Smith, Cases on Torts 722 (3d ed 1962). We conclude that expediency no longer justifies adherence to a dying doctrine.

Inasmuch as we are now of the opinion that the Landgraver case must be overruled, we are confronted with the holdings that this particular change in the law of torts ought to be made, if at all, by the legislature. See, e.g., Landgraver v. Emanuel Lutheran, supra at 493-494; Gregory v. Salem General Hospital, 175 Or 464, 483, 153 P2d 837 (1944). Cf., Note, 31 Or L Rev 78 (1951), and Note, Hospital Liability in the New York Court of Appeals: A Study of Judicial Methodology, 61 Col L Rev 871 (1961).

Accordingly, it is necessary to deal with the issues arising out of both stare decisis and the proper function of this court in evolving the law of torts.

It is argued that, once having been of the opinion that a particular reform in the law of torts ought to be made in the legislature, this court is forever bound to remain of that opinion, wrong though it may have been. However, it is neither realistic nor consistent with the common-law tradition to wait upon the legislature to correct an outmoded rule of case law. See Pierce v. Yakima Valley etc. Ass’n, 43 Wash2d 162, 180-182, 260 P2d 765 (1953) (concurring opinion of Grady, C.J.). Nor is legislative silence as instructive as was supposed in the Gregory and the Landgraver cases. Legislative indifference to remedies for private wrongs may be common enough in times when the assembly is occupied with a multitude of matters of grave public concern, but failure to enact a bill is not one of the constitutional methods by which the assembly make's law. Constitution of Oregon, Art IV, §25. See Hart, Comments on Courts and Lawmaking, in Legal Institutions Today and Tomorrow 40, 46 (Paulsen ed 1959)1

As was said by Desmond, J., in a decision whichj overruling an earlier ease, established the right to recover for prenatal injuries:

a* o * Negligence law is common law * * *.

“* * * Legislative action there could, of course, be, but we abdicate our own function, in a field peculiarly nonstatutory, when we refuse to reconsider an old and unsatisfactory court-made rule * * Woods v. Lancet, 303 NY 349, 354-355, 102 NE2d 691, 27 ALR2d 1250 (1951).

We must likewise reject the defendant’s contention that stare decisis binds us absolutely to the past. The pull of stare decisis is strong, but it is not inexorable. See State v. Mellenberger, 163 Or 233, 260, 95 P2d 709, 128 ALR 1506 (1939), which marshalled the authorities and concluded that, even in a criminal case, if the former decision is shown to be clearly in error it ought not to be followed. And see Woods v. Lancet, supra, where, in answer to stare decisis, the court said:

a# o? * Of course, rules of law on which men rely in their business dealings should not be changed in the middle of the game, but what has that to do with bringing to justice a tort-feasor who surely has no moral or other right to rely on a decision of the New York Court of Appeals * * *?” 303 NY at 354.

When litigants come into court, they expect the court to apply to their case the best rule of law available to the court. The fact that a rule has been followed for fifty years is not a convincing reason why it must be followed for another fifty years if the reasons for the rule have ceased to exist. Charitable immunity came to Oregon in Hill v. Tualatin Academy, 61 Or 190, 121 P 901 (1912). Its history in this state is reviewed in the dissenting opinion in the Landgraver case.

Ordinarily, in this state, as in most others, the growth of the law of private wrongs has been by judicial decision. See, e.g., Cowgill, Adm’r v. Boock, Adm’r, 189 Or 282, 302, 218 P2d 445, 19 ALR2d 405 (1950) (concurring opinion by Rossman, J.), and Keeton, Creative Continuity in The Law of Torts, 75 Harv L Rev 463 (1962). Tort law in 1963 differs from tort law in 1863 for the most part because of the work of the courts. When courts have recognized the need for remedies for new injuries, the remedies have been found. For example, liability-without-fault is imposed upon carefully conducted but hazardous operations employing explosives, Bedell et ux v. Coulter et al, 199 Or 344, 261 P2d 842 (1953), and upon those employing dangerous aerosols, Loe et ux v. Lenhardt et al, 227 Or 242, 362 P2d 312 (1961). To the extent permitted by the state constitution, government is now being held responsible for its wrongs. Vendrell v. School District No. 26C et al, 226 Or 263, 360 P2d 282 (1961). We find no continuing reason for adherence to the immunity rule for charities.

Upon trial below, the jury awarded the plaintiff a judgment against the negligent servant, but was instructed to return a verdict in favor of the hospital. The verdict established the fault of the servant and the measure of damages. There is no question that the negligent servant was working within the scope of her employment. It will be proper upon the remand to enter judgment n.o.v. for the plaintiff against the hospital.

Reversed and remanded.